There’s certainly nothing out of the ordinary about a contaminated food lawsuit.  Unless the food in question is dog food.  That’s exactly what went down May 25 when a New Jersey father filed suit against Diamond Pet Foods in federal court claiming his two month old infant was sickened by salmonella-contaminated dog food.  This lawsuit comes on the heels of Diamond’s May 5 pet food recall due to salmonella contamination. The lawsuit alleges that the dog food, manufactured by Diamond, infected the infant with a rare strain of salmonella infantis.  That’s the same  strain identified in another outbreak allegedly caused by Diamond’s contaminated pet food.  That instance is claimed to have sickened 15 people in 9 states.

One key question left unaddressed by the complaint is how the child was exposed to the allegedly contaminated dog food.  We can safely assume, since the child was only two months old, that he did not ingest the food on his own.  It would appear that the most likely culprit was a parent failing to wash his or her hands after handling the dog food.  As Diamond’s recall notice says, people can become infected with salmonella by handling contaminated food “especially if they have not thoroughly washed their hands after having contact with surfaces exposed to this product.”

Another key issue in this case is whether the Diamond pet food purchased by the plaintiff was even contaminated with salmonella.  Samples of the dog food purchased by the family were sent to a Monmouth County laboratory for analysis but did not test positive for salmonella.  The plaintiffs’ attorney has suggested that the contamination could have come from an earlier batch of Diamond dog food purchased by the plaintiffs.  However, the plaintiffs were supposedly buying Diamond’s dog food for months and neither of their two dogs became ill.

It should be interesting to see if the plaintiffs are able to convince a jury that there is causal connection between the illness and the dog food.  Either way, you know a pet food company is having a rough go of things when they are getting sued for making a human sick.

Sometimes, we here at Abnormal Use feel like we’ve seen it all, as far as crazy lawsuits go.  However, every now and then, a lawsuit comes along that makes us do a serious double take.  This is one of those cases.  A New Jersey couple fled their rental home just one week after moving in and is now suing for the return of their security $2,500 deposit.  The reason?  They claim the home is haunted.

Apparently, Josue Chinchilla and his fiancé, Michele Callan, thought they rented Jersey’s version of the Amityville Horror house. They claimed to have heard bizarre sounds and seen flickering lights. The couple also alleges that a voice whispered, presumably in an ominous fashion, “Let it burn!”  But it gets better (or worse depending on your viewpoint). Chinchilla says that once, a “shapeless dark apparition” tugged at the sheets when he was in bed and grabbed his arm.  The couple left the home one week after moving in, though they had paid a full month’s rent along with the security deposit.

In prosecuting the suit, the plaintiffs hired two sets of paranormal investigators.  These supernatural detectives say something is amiss at the home but disagree whether Chinchilla and Callan are plagued by a “residual haunting or an active haunting.” Now that’s a battle of the experts. I wonder if Plaintiff’s counsel will be able to get these two qualified under Daubert?

The landlord, orthodontist Richard Lopez, counter-claimed against the couple for breaking the lease.  Mr. Lopez’s attorney, David Semanchik, said his client has been renting the house to tenants for more than 10 years and this is the first time anyone has claimed the house is haunted. He thinks Callan and Chinchilla can’t afford the rent and are using the ghost story as cover.

We have to wonder if Mr. Semanchik considered counter claiming for the plaintiffs bringing the ghosts with them to the property?

Late last week, the New Jersey Supreme Court introduced a revised standard for the admissibility of eyewitness identifications in criminal prosecutions. State v. Henderson, — A. 3d —-, 2011 WL 3715028 (N.J. Aug. 24, 2011). We here at Abnormal Use have not forgotten that we are products liability blawg. But the New Jersey court’s opinion deserves our consideration because it shakes the bedrock of the American judicial system.

Science occupies a strange place in American culture. By and large, Americans love science when the fruit of scientific endeavors yields technology that accommodates our lives. No one seriously questions the virtue of science insofar as we have acquired nearly absolute advantages in communications, defense, and health care. By contrast, Americans tend to hate science when we are forced to confront our personal or social beliefs. The most apparent of these tensions is in the conflict between science and religion. In the battle for supremacy, the ardent supporters of either science or religion typically charge their rhetoric with fire, brimstone, and fervor that would inspire even the most Southern charismatic preachers. In these debates, there is little room for rational discourse. Between these warring camps is the storied silent majority of Americans, not sure of what to think, who to trust, or what to believe.

We say all this to honor the intellectual courage and integrity of the New Jersey Supreme Court. Its opinion in Henderson will likely open a new front in the war on science; this time, a civil war within the American legal system. The Henderson opinion is 134 pages, and many of those pages detail scientific studies that question the usefulness of one of America’s most sacred institutions: the trial by jury. Make no mistake, New Jersey is not advocating that we abolish the jury trial; far from. But what New Jersey has done is to take the lead in forcing American legal scholars and professionals to ask ourselves, is there a better way? For decades, this question has been presented outside the formal structures of America’s governing institutions. New Jersey could have left it there. It chose not to; and now, Americans must examine our personal beliefs about jury trials in light of statistics and data. This will not be an easy self-critical analysis; in fact, it could very likely become a polarizing political issue. But if the effectiveness of the jury trial is questionable, as scientific research suggests, then better we address the matter sooner rather than later.

The narrow question in Henderson is whether there were appropriate safeguards in New Jersey to ensure that eyewitness identifications of criminal defendants had been validly obtained. As a matter of constitutional law, the United States Supreme Court had previously established a set of five factors to guide judges in passing upon the admissibility of eyewitness identifications. Manson v. Brathwaite, 432 U.S. 98 (1977). By subsequent opinion, New Jersey followed the United States Supreme Court’s lead. New Jersey v. Madison, 109 N.J. 223 (1988). These five factors were each intended to guage the subjective perceptions of eyewitnesses and to determine whether such witnesses could reasonably have made later identifications of criminal suspects (e.g., as from police line-ups). These factors were to be balanced against any evidence that the witness’s identification had been corrupted, inadvertently or otherwise, by suggestive comments or conduct by the police or other third-parties. Ultimately, the court used Henderson to refine this process and to clarify additional procedural steps.

To some extent, we are surprised that the court will continue to allow eyewitness identifications to be admissible at trial. In its opinion, the court states that “it has been estimated that approximately 7500 of every 1.5 million annual convictions for serious offenses may be based on misidentifications.” Furthermore, “of all investigative procedures employed by police in criminal cases, probably none is less reliable than the eyewitness identification.” The opinion cites the International Association of Chiefs of Police as the source of the preceding quote. If eyewitness identifications are not reliable, and they are actively causing wrongful convictions, we have to wonder whether they should be admissible at all. Perhaps it would be best to let eyewitness identifications go the way of polygraphs and confine such identifications to investigative tools.

But this is not why Henderson is important. More broadly, the court used Henderson to explore the scientific data and research regarding witness perception and memory. What it found was troubling. If there is any theme throughout the opinion, it is the court’s recurring statement that “memory is malleable.” What does this mean? To be blunt, it means that witnesses are generally not sure of what they saw, and they become less sure as time goes by.

This isn’t necessarily surprising. But consider this: the court relied on live-data studies from Sacramento and London for eyewitness identifications. The Sacramento studies involved roughly 500 people who were eyewitnesses to criminal conduct and participated in a later identification. Of the 500, 33 percent could not make an identification. Of the ones who did make an identification, 24 percent identified the “filler” (an innocent person in a police line-up). Of the ones who correctly identified the suspect, there was no data on whether the suspect was actually guilty of the crime committed. The London studies involved more than 2100 people. Of those, 41 percent could not make an identification. And of the ones who made an identification, 33 percent identified the filler.

The court also relied on controlled studies. In one study, the researchers sent an individual to have conversations of a few minutes each with store clerks. Five hundred clerks were involved, and they were not advised up front that they were participating in a study. Between two and 24 hours later, an undercover researcher would talk with the clerk about the individual they had had a conversation with and ask the clerk to pick the person out of a line-up. Seventeen percent of clerks could not identify the individual; of the ones who made an identification, 41 percent picked the filler. Perhaps more troubling, in some cases, the line-ups shown to clerks did not contain the individual they had talked with. In those cases, 36 percent of clerks still made an identification.

These problems with perception and memory are not limited to police line-ups. Research suggests they are more pervasive. In another experiment cited by the court, researchers asked participants in their study to watch a video of a car driving along a country road. The participants were first asked to estimate the speed of the vehicle. Then they were asked if they remembered seeing a barn in the video. There was no barn, but 17 percent of participants remembered seeing one.

The court also cited data from research that, not surprisingly, demonstrated how the way in which questions were asked-as in, the difference in the choice of even one word-substantially affected each witness’s perception and memory of the same event. When we apply the results of this research to the process of our judicial system, we have good reason to be concerned. Fact witnesses form the basis of any claim. But this research suggests that fact witnesses do not necessarily accurately perceive the facts they witness; and even if they do, over time, the recollection of the facts they perceived (as distinguished from the facts that happened) breaks down. Memory is malleable.

But wait; there’s more. Research further demonstrates that fact witnesses are not the only ones who experience misperception and corrupted memory. Jurors do, too. In another experiment cited by the court, researchers found that jurors (who obviously hear the same information) have different perceptions of the information heard, which leads them to have different recollections of the same set of facts.

To recap, let’s assume that an event happens in front of several witnesses. Research suggests that each of those witnesses will perceive different “facts” about that event. At trial, months or years after the event, each witness’s recollection of the “facts” perceived about the event will have changed. Each member of the jury will perceive different information about the testimony presented, and even that information will have changed by the time the jury gets to deliberation.

You must be asking yourselves by now whether there is any good news to come out of this. There’s not. It actually gets worse. If you’re wondering what the most important aspect of a juror’s decision-making process is, here’s your answer: research shows that the single most important factor for any given juror’s decision-making is whether he or she perceived a witness as “confident.” Assuming that jurors are trying to determine the truth of a matter, research demonstrates that jurors equate truthfulness with confidence. Therefore, juries are not deciding facts so much as they are deciding which witnesses are more confidently reporting the facts they perceived (whether those facts actually happened or not).

All this suggests that we may have something very, very wrong with our judicial system. Churchill famously quipped that democracy is the worst form of government except all the others that have been tried. Perhaps the same can be said about the American judicial system and the notion of trial by jury. However, we have to believe that the New Jersey Supreme Court intended its opinion in Henderson to spark a debate about how to craft a more perfect legal system. Let’s pray that the same intellectual courage and integrity that drove the court’s opinion will characterize the discussions that follow.

Religion has yet to become a central element in our product liability practice.  However, with the prevalence of religion in this country, there must be somewhere we can find a spiritual product liability claim.  Maybe Georgia?  Texas, perhaps?  Try New Jersey.

Recently, in Gupta v. Asha Enterprises, No. A-3059-09T2 (N.J. Ct. App. July 18, 2011), the Appellate Division of the New Jersey Superior Court affirmed in part and reversed in part a trial court’s grant of summary judgment in favor of an Edison, New Jersey restaurant that allegedly served meat-filled samosas to sixteen Hindu vegetarians.  As part of an India Day celebration in 2009, the plaintiffs placed an order at the Indo-Pak restaurant for vegetarian samosas, informing the restaurant that the food was being purchased for a group of strict vegetarians.  The restaurant filled the order and assured the plaintiffs that the food did not contain meat.  After consuming some of the samosas, the plaintiffs returned the remaining samosas to the restaurant and were advised that the food was, in fact, filled with meat.  As a result, the plaintiffs claimed spiritual damage and asserted a number of causes of action against the restaurant, including product liability and breach of express warranty.  The Court found prima facie evidence of an express warranty by the restaurant employees and reversed the grant of summary judgment as to that claim.  However, the Court affirmed summary judgment on the product liability claim, holding that, while the plaintiffs were supplied the wrong product, the food was safe, edible, and fit for human consumption.  Alas, religion and products liability remain divided.

As practitioners of the Swaminarayan principles of Hinduism,the plaintiffs believe that by eating meat they “become involved in the sinful cycle of pain, injury and death on God’s creatures, and that it affects the karma and dharma, or purity of the soul.”  While the food may have been physically safe, for the plaintiffs, meat is hardly fit for human consumption.

If the plaintiffs prevail on their express warranty claim on remand, the jury may have their hands full when calculating damages.  The plaintiffs are seeking compensation for emotional distress and economic damages in connection with a purification ritual they must now undergo to cleanse themselves.  According to Swaminarayan principles, the souls of those who eat meat can never go to God after death.  What dollar amount can be placed on eternal damnation?  After violating this principle, knowingly or unknowingly, the plaintiffs must travel to the River Ganges in Haridwar, Uttranchal, India to undergo a purification ritual which can last up to 30 days.  As the Court noted, in order to be awarded consequential damages, the damages must have been foreseeable at the time of the sale.  While that might not be the case with a fast food joint, perhaps a restaurant focusing on Indian cuisine could be charged with such knowledge.

In an increasingly pluralistic society, restaurants and manufacturers cannot reasonably be expected to produce their products in accordance with the plethora of religious principles.  However, there are some express statements here that will soon be litigated. We will have to wait and see what happens.

We’ve blogged in the past about the necessity of an actual injury to maintain a lawsuit, and just yesterday, the New Jersey Appellate Division again reminded us that there must be some damage sustained before the law will permit recovery. In DeBenedetto v. Denny’s, Inc., No. A-4135-09T1, 2011 WL 67258 (N.J. App. Div. Jan. 11, 2011) [PDF], the Plaintiff sued Denny’s under the state Consumer Fraud Act [CFA], alleging that the restaurant chain failed to disclose the high sodium content in his typical breakfast of ham, bacon, sausage, and hash browns. Although the Plaintiff framed the action under the CFA (ostensibly because neither he nor his purported class had any injury), the court affirmed a dismissal and stated that crux of the claim was products liability, and, therefore, there must be some injury alleged.

Avid readers our site might predict that we will spend the next few paragraphs poking fun at the Plaintiff’s attorney’s inability to properly frame the cause of action or to understand what the word “damage” really means. But today we take a different tack and offer some litigation planning tips to our friends in the plaintiff’s bar. It’s no secret that excess sodium in the diet is bad for you [PDF]. But like a lot of other ingredients, sodium has some benefits, like extending the shelf-life of food. However, sodium may head the way of the trans fat, as there is an increasing awareness and governmental pressure to force reduction of sodium in food.

DeBenedetto may merely have been a test case to see how the courts would react to such claims. Perhaps the courts would not have been so quick to dismiss the case if the evils of excess sodium had gotten some more media attention over the past ten years. Sodium can cause problems with blood pressure and kidney function, but because causation of high blood pressure is multifactorial, causation may be difficult to prove, even given an injury. Maybe a few years from now, in a different state, a consumer fraud action might be more tolerable. Or maybe there is some political aspiration. Perhaps Mr. Wolf, the Plaintiff’s attorney, sees himself as a future sodium czar, helping to craft some FDA regulations. There’s nothing like being in front of an issue to add credibility to a position.

Nevertheless, it would not surprise me if excess dietary sodium quickly became a mainline issue, and whether it means a future tort suit or some other kind of remuneration, I am hard-pressed to believe that this New Jersey suit doesn’t fit in to some other larger litigation plan.

As we previously reported here, harm covered by New Jersey’s Products Liability Act (“PLA“) may not be redressed through a claim under New Jersey’s Consumer Fraud Act (“CFA“). However, based on a recent opinion from the United States District of New Jersey, practitioners should be aware that there are no hard and fast rules for early dismissal when a plaintiff asserts claims under both the PLA and CFA. Shannon v. Howmedica Osteonics Corp., No. 09-4171, 2010 WL 1492857 (D.N.J. Apr. 14, 2010).

In Fellner, discussed in our Tuna A Day post, the United States District Court of New Jersey found that the mere fact that the plaintiff sought damages for the cost of the allegedly defective tuna did not negate the fact that her underlying claim was that the product was defective, which claim was covered by the PLA. Fellner v. Tri-Union Seafoods, LLC, No. 06-0688, 2010 WL 1490927 (D.N.J. Apr. 13, 2010). As a result, on defendant’s motion to dismiss, Judge Cavanaugh found that the plaintiff’s claim under the CFA was subsumed by the PLA and dismissed plaintiff’s CFA claims.

In a matter decided one day after Fellner, Judge Linares was not as easily convinced that the plaintiff’s CFA claim was subsumed by the PLA. In this matter, Dave Shannon (“Shannon”) brought an action against Howmedica Osteonics Corporation (“Howmedica“) asserting that a “tibial insert manufactured and sold by Howmedica and inserted into his knee prematurely failed.” Shannon brought claims under both the PLA and CFA. Howmedica moved to dismiss his CFA claim on the ground that it was subsumed by the PLA.

Howmedica argued that the “essential nature of Plaintiff’s CFA claim is a product liability action,” and that the “damages that he seeks in his CFA claim are recoverable under the PLA.” This is a similar argument to the one defendant made in Fellner, which the Fellner Court accepted. In response, while the Shannon court agreed that generally “where the essential nature of a claim is a products liability claim, all other claims are subsumed by the PLA claim,” it pointed out that it appeared that Shannon was seeking damages for the cost to replace the insert — damages that may not be covered under the PLA. Then, however, the Court acknowledged that Shannon may be seeking the same damages under both the PLA and CFA. The Court denied Howmedica’s motion to dismiss and allowed discovery to proceed. Judge Linares stated the following:

If, after discovery, it is clear that all of the harm for which Mr. Shannon seeks redress is covered by his PLA claim, then Howmedica may move for summary judgment on the CFA claim.

From this decision, it appears that claimants in New Jersey may still be able to survive a motion to dismiss when he or she brings both PLA claims and CFA claims where the damages alleged raise the question whether they are covered by the PLA, even where the essential nature of the claim is that a product is defective. As a result, we may see more and more claimants pleading damages similar to Shannon to at least make defendants litigate both PLA and CFA claims through discovery. It will be interesting if the United States District Court of New Jersey further clarifies this issue, providing more concrete rules when CFA claims are subsumed by the PLA.

Defendant moved to dismiss the action on the grounds that (1) Plaintiff’s claims under the New Jersey Consumer Fraud Act (“CFA“) were subsumed by her claims under the New Jersey Products Liability Act (“PLA“), (2) Plaintiff had failed to state her claims with sufficient particularity, (3) Defendant had no duty to warn, and (4) public policy considerations warranted dismissal of the action. The Court granted Tri-Union’s motion on the first ground, but denied on the other grounds.

On Tri-Union’s first ground, the Court agreed with Tri-Union that Fellner’s claims under the CFA are subsumed by the PLA because the mere fact that Fellner sought economic damages to reimburse her for the cost of the product, did not negate the fact that her underlying claim was that the tuna was defective. A contrary finding would nullify the intended purpose of the PLA to “unify products liability causes of action into a single claim.”

Tri-Union’s third ground for dismissal was that it had no duty to warn of the potential danger of mercury in its tuna products. Tri-Union first argued that the dangers of mercury are obvious, operating as a complete defense to a failure to warn action. The Court found that level of consumer knowledge was relevant but that this determination could not be made at this stage of the pleadings. Next, Tri-Union argued that Fellner misused the product by consuming the product in “abnormal” quantities and, therefore, the danger caused by such misuse was unforeseeable. The Court again found that while her consumption may be relevant, this determination could not be resolved on a motion to dismiss. Finally, the Court rejected Tri-Union’s argument that since mercury is naturally occurring, no warning was necessary. The Court stated that this was not a per rule.

The Court’s ruling merely dismissed Fellner’s claim under the CFA but allowed her claim under the PLA for failure to warn to move forward. Therefore, it would be in the jury’s hands whether the dangers of consuming approximately 4,380 cans of tuna was knowledge a typical consumer possesses and whether this level of consumption was an unforeseeable misuse.

Seroquel, with a reported $4.9 billion in sales in 2009, has been widely utilized for treatment of psychotic disorders such as bipolar disorder and schizophrenia. In the present case, the plaintiff was a 61-year-old Vietnam veteran who took the drug for treatment of posttraumatic stress disorder. He is one of thousands of users of the drug who allege that AstraZeneca causes diabetes and that the company failed to adequately warn patients of that risk.

Not surprisingly, the huge volume of litigation over the drug has resulted in “millions of pages” of discovery material. The New York Times reports that among those millions of pages were at least two seemingly explosive emails. The first of those, it reports, was a 1997 message from an AstraZeneca official in which he praised the work of the company’s physician for minimizing adverse conclusions regarding the drug in a “cursed” study. Specifically, he reportedly wrote: “Lisa has done a great ‘smoke-and-mirrors’ job!” The second of those emails was written in 1999, two years after the drug was approved for use in the United States. In it, the company’s publications manager reportedly wrote: “The larger issue is how do we face the outside world when they begin to criticize us for suppressing data.”